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2016 DIGILAW 1147 (MP)

Mangal Prasad v. Shera Khan

2016-12-14

ANJULI PALO

body2016
JUDGMENT : Anjuli Palo, J. 1. Being aggrieved by the award dated 24th October, 2005 passed by the learned MACT, Khandwa, this appeal has been tiled under Section 173 of the Motor Vehicles Act. 2. It is admitted fact that at the time of incident the offending Auto Rickshaw bearing registration No. MP 50 K/0124 was being owned by respondent No. 2 and was being driven by respondent No. 1. The same was insured with the respondent No. 3-Insurance Company. 3. In brief, the appellant's case is that on 27th August, 2004 at about 8.30 p.m. he was riding motorcycle bearing registration No. MP 51-B/757 and Kewal Singh Thakur was the pillion rider. When they reached between Rodatola and Jhara Nala, respondent No. 1, driving the offending auto-rickshaw rashly and negligently collided with the appellant's motorcycle. The appellant on account of which the appellant sustained grievous injuries. He was treated in District Hospital Balaghat. On oral report at Police Station, Baihar Crime No. 165/2004 lodged against the respondent No. 1. On the above grounds the appellant filed the claim case No. 26/2005 under Section 166 of the Motor Vehicles Act, for compensation to the tune of Rs. 2,20,695/-. 4. Respondent Nos. 1 and 2 denied the claim of the appellant. Their contention was that the vehicle was insured with respondent No. 3, who is liable to pay the compensation. 5. As per respondent No. 3 at the time of the accident, the rider of appellant's motorcycle was not holding a valid and effective driving licence. Hence, there was breach of condition of the insurance policy, hence the Insurance Company is entitled to be exonerated from the liability. 6. The learned Tribunal found that the accident was occurred at the middle of the road. The driver of the motorcycle never tried to avoid accident and dashed against the auto rickshaw, which was coming from to opposite direction. Learned Tribunal was of the opinion that this is a case of joint negligence of both the drivers of the vehicles i.e. driver of the auto rickshaw and rider of the motor cycle. Thus, the claim has been rejected in to. The appellant challenged the impugned award on the ground that the learned Tribunal illegally rejected his claim. Tribunal has not considered the evidence produced by him, hence the order passed by the Tribunal be set aside. Thus, the claim has been rejected in to. The appellant challenged the impugned award on the ground that the learned Tribunal illegally rejected his claim. Tribunal has not considered the evidence produced by him, hence the order passed by the Tribunal be set aside. This finding is totally erroneous and against the object of the beneficial provisions of Motor Vehicles Act. 7. As per the factual position of the accident, it cannot be held that the rider of the motorcycle was solely responsible for the accident. In the opinion of this Court, the finding of learned MACT is not sustainable in law, so far as it relates to the negligence of the rider of the motorcycle, this Court is of the opinion that both the driver of the vehicle and rider of motorcycle were negligent for the accident. Therefore, they have contributed to the accident and they are equally liable for the accident. 8. The learned MACT at paras 12 and 13 of the award evaluated the compensation to the extent Rs. 75,000/- which includes Rs. 50,000/- for the injuries sustained by the appellant and Rs. 20,000/- for pain and suffering. Looking to the facts of the case, the amount seems to be reasonable. However, the appellant has not produced any certificate in this regard. As in the present case the appellant is equally responsible for the accident and is therefore, equally responsible for the compensation, therefore, he is entitled to the extent of 50% of the award. 9. In view of the above, this appeal is partly allowed. The appellant is entitled to receive a compensation of Rs. 75,000/- only. The respondents shall severally and jointly liable to pay the compensation and therefore, they are directed to deposit half of the amount of compensation (i.e. Rs. 37,500/-) with the Tribunal along with interest @ 7% per annum from the date of filing of the claim petition till its realisation within a period of six weeks from the date of receipt of a copy of this order. The claimant/appellant is permitted to withdraw the entire amount that would be deposited by the respondents. 10. No order as to costs.